Shielsar v Aghabekian

Background

1. The Company was registered on 16 November 2006. Mr Shielsar was the sole shareholder and director of the Company and remained as such throughout its existence.
2. On 6 September 2019, Mr Shielsar applied to ASIC for the deregistration of the Company under s 601AA of the Corporations Act 2001 (Cth) ("Corporations Act"). That section allows a director of a company to apply for its deregistration.
3. On 29 September 2019, Mr Shielsar provided a quote for painting work on the Company's letterhead to Mr Aghabekian and his wife.
4. On 13 November 2019, ASIC deregistered the Company.
5. In March and April 2020, the painting work was performed by Mr Shielsar.
6. On 17 February 2021, Mr Aghabekian filed an application with the Tribunal commencing proceedings. His application identified the respondent to the application as: "RESPONDENT: ART AND BRUSH PAINTING NORTHERN BEACHES ACN: ABN 3112705168"
7. On 30 March 2021, the Tribunal made an order which amended the name of the respondent to "Art & Brush Pty Ltd", i.e. the Company.
8. On 30 June 2021, the Tribunal heard the application. Mr Shielsar and Mr Aghabekian participated in that hearing. Mr Shielsar did so in part in Farsi via an interpreter and in part in English. Also on that day, as noted above, the Tribunal made the 30 June 2021 Order.
9. On 1 July 2021, the Tribunal published its Reasons For Decision ("Decision") The reasoning in the Decision may be summarised as follows: 1. Mr Shielsar provided a quote to paint the interior of Mr Aghabekian's house; 2. Mr Aghabekian accepted that quote (the date of acceptance is not clear); 3. the painting was done; 4. Mr Aghabekian paid $9,500 to Mr Shielsar (exclusive of GST); 5. the paint did not adhere to the woodwork surfaces to which it had been applied; 6. the lack of adhesion was: 1. not due to the paint; 2. due to the woodwork surfaces not having been properly sanded; 1. Mr Shielsar, by failing to properly sand the woodwork surfaces, breached s 60 of the Australian Consumer Law; 2. as a result, rectification work was needed; and 3. a reasonable amount for that work is $11, 386 (inclusive of GST), being lower amount of the two quotes in evidence.
10. The findings concerning the paint not adhering to the woodwork surfaces because those surfaces had not been properly sanded were consistent with the evidence of Mr Gawthorne and Mr Rigo on behalf of Mr Aghabekian. In contrast, the Tribunal found that the evidence of Mr Perry on behalf of Mr Shielsar was speculative and unreliable.
11. On 27 July 2021, Mr Shielsar lodged a Notice of Appeal in which he named himself as the appellant. The Notice of Appeal was lodged out of time. However, in view of the relatively short period by which it was late and the fact that Mr Aghabekian did not object to an extension of time, the Appeal Panel grants an extension of time in which to appeal.
12. On 29 July 2021, the Appeal Panel made directions which named the Company, rather than Mr Shielsar as the appellant.
13. On 24 August 2021, Mr Aghabekian filed his Reply to Appeal, in which he referred to the deregistration of the Company. It appears that Mr Aghabekian only learnt of the deregistration after the Decision was delivered.
14. On 10 September 2021, an application by Mr Shielsar concerning inspection of the damaged areas of the paint work performed was refused by Deputy President Westgarth on the basis that new evidence is not allowed in an appeal unless it was not reasonably available at the time of the first hearing.

The effect of the deregistration of the Company

1. Section 601AD of the Corporations Act provides that a company ceases to exist on deregistration.
2. As the Company ceased to exist on 13 November 2019 it could not from that date bring or defend any proceeding.
3. Mr Aghabekian asks the Appeal Panel to make orders with the effect of replacing the Company with Mr Shielsar as the respondent before the Tribunal, as the appellant before the Appeal Panel, and in the 30 June 2021 Order. Mr Shielsar indicated his consent to such orders. In this regard, Mr Shielsar indicated to the Appeal Panel that: 1. he always considered himself to be the party which entered into a contract with Mr Aghabekian; and 2. he understood that he was not personally liable as a result of the Tribunal's orders but would become liable if the order sought by Mr Aghabekian were to be made and the appeal were to fail.
4. The issue for determination is whether the Appeal Panel is able to make such orders and if so, then whether it should do so.

Legal principles

1. Sections 63 and 81 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") provide in so far as is presently relevant: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where - (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. … 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
2. Section 63 of the NCAT Act provides a power to correct obvious errors in a decision. That section was employed in circumstances similar to the present case in the proceedings before the Tribunal which were the subject of an appeal in Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190. In that case: 1. proceedings were commenced by homeowners against a company ("first company"); 2. following a hearing, the Tribunal made an order that the first company pay a certain amount to the homeowners; 3. it subsequently came to light that the first company has been deregistered since 1992; 4. the homeowners then applied to amend the order that had been made by substituting the name of a second company ("substituted company") for the name of the first company; 5. the Tribunal acceded to that application, for reasons which are reproduced in Dixonbuild Pty Ltd v Adams at [78]; and 6. an appeal was lodged, including against the order which substituted the substituted company for the first company.
3. The appeal against the substitution order was dismissed. Relevantly for present purposes the Appeal Panel in that case: 1. made the following observations at [82] to [86] concerning the approach to be taken in interpreting s 63 of the NCAT Act: "82. The language of s 63(1) talks of an obvious error. As made clear by subs 63(3)(a) and (b), such errors include a clerical mistake and an error arising from an accidental slip or omission. In addition, by reason of subs 63(3)(c) and (d) obvious error includes corrections to rectify a defect in form or an inconsistency between the stated decision and the stated reasons. 83. In interpreting s 63, the Tribunal must have regard to the guiding principle found in s 36(1) of the NCAT Act which requires the Tribunal "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 84. Section 36(2) of the NCAT Act provides: (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. 85. When interpreting similar provisions found in s 56(1) and (2) of the Civil and Procedure Act, 2005 (NSW) (CP Act), Spigelman CJ (with whom Santow JA and Handley AJA agreed) said in Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195 (Newmont) at [25)-[28]: 25 An "overriding purpose" was inserted in the Supreme Court Rules in 2000. It is now found in s56 of the Civil Procedure Act 2005 (NSW) which, relevantly, provides: "56(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." 26 Accordingly, this Court, unlike other courts which have the traditional form of slip rule, is required to approach the task of interpreting the relevant words, including "error", "accidental slip or omission" and "correct", in such a manner as to give effect to the overriding purpose. Such an interpretive requirement may lead to different results in New South Wales when compared with the past or with other jurisdictions. 27 Similarly, the Court must seek to give effect to the overriding purpose when exercising the discretion to correct an error or mistake in a judgment or order pursuant to r 36.17. In each respect this constitutes a substantive difference which requires the Court to treat prior case law and the case law from other jurisdictions with some care. 28 Accordingly, when considering the exercise by White J of the discretion under the slip rule, the obligation cast on his Honour by s56(2) is pertinent. 86. It is in this context that the task of interpretation must be undertaken. In doing so, it is still appropriate to have regard to previous decisions of the courts interpreting the various expressions now found in the NCAT Act."; 1. noted at [87] the similarity between the text of s 63(3)(a) and (b) of the NCAT Act and the text of r 36.17 of the Uniform Civil Procedure Rules, 2005 (NSW), which provides: 36.17 Correction of judgment or order ("slip rule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. ; 1. considered at [88] to [93] various statements of appellate Courts concerning r 36.17 and analogous provisions; 2. stated at [94] to [96]: "94. Having regard to the above, in our view s 63 operates to permit the amendment to an order in circumstances where: (1) There is an obvious error in the order; (2) Even if the Tribunal was unaware of the error at the time the order was made, the error arises from facts which, if known to the Tribunal, would have caused it at once to make an order correcting the error; (3) Correcting the error does not involve redetermination of the real issues in dispute; (4) The correction of the error will not be contrary to other orders made and/or any reasons given in respect of the original orders, unless those other orders and reasons also require correction for obvious error; and (5) The amendment will not give rise to any injustice on the party affected. 95. Injustice might include where a party has been denied a reasonable opportunity to be heard on the substantive dispute to which the error relates or has subsequently acted to their detriment in reliance of the original decision. 96. Errors include where the parties, through inadvertence or being unaware, have not raised the error with the Tribunal"; 1. after distinguishing the decision in Yang v Oppidan Homes Pty Ltd [2016] NSWCATAP 146, continued at [99]-[102]: "99. … To this extent, we agree s 63 cannot ordinarily be used to change a deliberate decision concerning a real issue in dispute because further analysis of evidence (whether existing or new) might lead to a different conclusion. Rather, its purpose is to correct errors of a type which, if drawn to the attention of the Tribunal at the time of the original hearing would have been corrected immediately. 100. We should record that our views should not be taken as an exhaustive statement as to the circumstances in which an error might be corrected under s 63. … 101. Finally, in expressing this view, we should make clear that the Tribunal has no inherent jurisdiction of the type to which the Court referred in Newmont and such concepts do not apply to the Tribunal. As Spigelman CJ (with whom Handley AJ and Campbell AJA agreed) said in John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324; 61 NSWLR 344 at [24]: 24 As a statutory court, the District Court of New South Wales has only such powers as are expressly conferred on it or as are necessarily implied from the express conferral of jurisdiction upon and grant of powers to the Court. A statutory court like the District Court does not have an inherent jurisdiction of the character traditionally exercised by the Royal Courts of Justice in England. Such an inherent jurisdiction is conferred on the Supreme Court of New South Wales. 102. The source of power of the Tribunal is found in the NCAT Act and relevant enabling legislation conferring jurisdiction on the Tribunal, such power being express or necessarily implied by reason of the language of the relevant legislation. In this regard, while s 36(2) makes relevant the guiding principle to the task of the Tribunal in interpreting and exercising its powers, its obligation to do so is not based on any concept of inherent jurisdiction as might attach to a superior court: Logwon Pty Ltd V Warringah Shire Council (1993) 33 NSWLR 13 per Kirby P at 16-17."; and 1. at [103]-[106], applied the above principles to the facts of that case and held that the Tribunal was to correct to conclude that it had power to amend the name of the respondent and acted appropriately in doing so. Of particular relevance are the observations that: 1. the true contracting party was not the deregistered company, but the substituted party; and 2. the substituted party existed at all relevant times and was aware of and had participated in the proceedings.

Consideration

1. Section 63 of the NCAT Act provides the Tribunal with a discretion sufficiently broad to substitute Mr Shielsar for the Company as a party to the proceedings before it. In addition to its power to exercise that discretion in the appeal proceedings, it may also do so in the proceedings below by reason of s 81(2) of the NCAT Act.
2. The discretion is unfettered in its terms. Matters informing its exercise include: 1. s 36(1) of the NCAT Act which provides that the guiding principle is to facilitate the just, quick and cheap resolution of the real issues in the proceedings; 2. the matters identified in Dixonbuild Pty Ltd v Adams at [94]: "94. Having regard to the above, in our view s 63 operates to permit the amendment to an order in circumstances where: (1) There is an obvious error in the order; (2) Even if the Tribunal was unaware of the error at the time the order was made, the error arises from facts which, if known to the Tribunal, would have caused it at once to make an order correcting the error; (3) Correcting the error does not involve redetermination of the real issues in dispute; (4) The correction of the error will not be contrary to other orders made and/or any reasons given in respect of the original orders, unless those other orders and reasons also require correction for obvious error; and (5) The amendment will not give rise to any injustice on the party affected."; and 1. the facts of the particular case.
3. In the present case, the following facts are pertinent: 1. the proceedings were commenced against "ART AND BRUSH PAINTING NORTHERN BEACHES ACN: ABN 3112705168"; 2. "ART AND BRUSH PAINTING NORTHERN BEACHES ACN: ABN 3112705168" is not a legal person; 3. on 30 March 2021, the Tribunal made an order by which the Company became the respondent in the proceedings below. The circumstances in which that order was made are not known to the Appeal Panel and it appears that the Tribunal was unaware of the deregistration of the Company; 4. at all relevant times during the proceedings Mr Shielsar was aware that the Company was deregistered and did not bring this fact to the attention of the Tribunal; 5. Mr Shielsar participated in the hearing; 6. the Tribunal published its Decision and made the 30 June 2021 Order in circumstances where it was unaware of the deregistration of the Company; 7. on 27 July 2021, Mr Shielsar lodged a Notice of Appeal in which he named himself as the appellant; 8. on 29 July 2021, the Appeal Panel made directions which named the Company, rather than Mr Shielsar, as the appellant. This was of course appropriate as the Company was, and Mr Shielsar was not, the respondent before the Tribunal and the subject of the 30 June 2021 Order. At that time the fact of the deregistration of the Company was not known to the Appeal Panel; 9. that fact was raised by Mr Aghabekian in his Reply to Appeal after he became aware of it; and 10. Mr Shielsar consented to the orders sought by Mr Aghabekian.
4. It is appropriate to make the order sought by Mr Aghabekian, for the following reasons.
5. First, there is an obvious error in circumstances where the 30 June 2021 Order was made against the deregistered Company when the true contracting party was Mr Shielsar (as Mr Shielsar acknowledged).
6. Secondly, it is tolerably clear that if this error been brought to the attention of the Tribunal, then the Tribunal would not have made the 30 June 2021 Order and instead would made an order against Mr Shielsar.
7. Thirdly, the substitution of Mr Shielsar for the Company in the 30 June 2021 Order does not require a redetermination of any issues. Nor would it cause any injustice to Mr Shielsar. As noted above, Mr Shielsar consented to the making of the order sought by Mr Aghabekian in circumstances where he considered himself to be the true contracting party and understood that it may involve him becoming personally liable if the appeal were to fail.
8. Fourthly, making the orders sought would not be contrary to any other orders or reasons given save to the extent that those orders and reasons are infected by the same error.
9. Fifthly, the making of an order substituting Mr Shielsar for the Company is consistent with the guiding principle described in s 36(1) of the NCAT Act namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
10. Thus, the Appeal Panel will make an orders that: 1. the name of the respondent in proceeding HB 21/07423 is amended to "Reza Shielsar"; 2. the order made by the Tribunal in proceeding HB 21/07423 on 30 June 2021 is amended by the removal of the words "Art & Brush Pty Ltd" and by the insertion in substitution therefor the words "Reza Shielsar"; and 3. the name of the appellant in proceeding AP 2021/00215117 is amended to "Reza Shielsar".

The appeal

1. As this is an appeal from the Consumer and Commercial Division of the Tribunal it is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the NCAT Act.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. Clause 12(1) provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. In Collins v Urban [2014] NSWCATAP 17 ("Collins"), an Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
4. If Mr Shielsar were to establish that he may have suffered a substantial miscarriage of justice in the sense explained above, then the Appeal Panel would have a discretion whether to grant leave under s 80(2) of the NCAT Act. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; or (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
5. Where, as in the present case, Mr Shielsar is not legally represented it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided, and the Decision to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. However, it is not the role of the Appeal Panel to draft grounds of appeal for the appellant not raised, and then resolve them: ZNX v ZNY [2020] NSWCATAP 41 at [29], citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [30].

Appeal as of right

1. Having considered the stated grounds of appeal, the material provided, and the Decision the Appeal Panel considers that Mr Shielsar raises a question of law concerning whether he was afforded procedural fairness at the hearing. If there was a failure by the Tribunal to accord procedural fairness to Mr Shielsar, that would constitute an error of law.
2. The Notice of Appeal states: "- The interpreter/translator did (sic) sufficiently translate the information, resulting in me not understanding crucial questions that may have determined the result of the Tribunal - There was not equal time between the two parties and there also was not enough time for me to represent myself - The language barrier was a disadvantage as I needed more time to process the question due to poor understanding of legal jargon that could not be properly translated - At the beginning of the Tribunal, I could not understand the translator, which impacted my answers"
3. The Appeal Panel has listened to the sound recording of the hearing. None of the matters of which Mr Shielsar complains are evident from the sound recording. Further, that recording contains no complaint by Mr Shielsar of the kind he now makes; and the submissions that he made in English did not suggest that he had difficulties in that language. Mr Shielsar has also not provided evidence that the interpreter failed to sufficiently translate information to him.
4. For the above reasons, the Tribunal is not satisfied that there was any absence of procedural fairness.

Leave to appeal

1. As noted above at [36], before the Appeal Panel is able to give leave to appeal it must be satisfied that Mr Shielsar may have suffered a substantial miscarriage of justice because: 1. the Decision was not fair and equitable; or 2. the Decision was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Was the Decision not fair and equitable?

1. Mr Shielsar's Notice of Appeal sets out several bases on which he contends that the Decision was not fair and equitable.
2. The first basis concerns the procedural fairness issues which are discussed at [40]-[43] above. For the reasons there set out, the Appeal Panel is not satisfied that those issues rendered the Decision not fair and equitable.
3. The second basis is that he did not have an opportunity to have an independent expert inspect the work that was done. However, there is no evidence before the Appeal Panel that suggests that he was denied such an opportunity; or that he claimed before the Tribunal that he was disadvantaged by such a lack of opportunity. Further the letter from Mr Perry which was tendered by Mr Shielsar states that Mr Perry attended Mr Aghabekian's house in the company of Mr Shielsar.
4. The third basis was that the amount awarded by the Tribunal was based on a quote for the entire job and not just the areas showing damage.
5. In this regard, the Tribunal found that: 1. Mr Shielsar charged Mr Aghabekian $9,500 in cash and without a GST component (Decision [27]); 2. Mr Aghabekian had tendered two quotes, one for $11,386 (including GST) and another for $14,300 (including GST) (Decision [17]); 3. Mr Shielsar had not tendered any competing quotes despite Mr Aghabekian's quotes being included in the documents lodged by Mr Aghabekian on 7 April 2021 (i.e. more than two months before the hearing) (Decision [29]); 4. partial rectification was not feasible because addressing part of the paint work would not address work that has yet to exhibit defects and partial rectification would produce a "patchwork" result if only sections of a door or other area were to be done (Decision [27]); and 5. $11,836 was a reasonable and necessary cost to repair the paintwork.
6. In these circumstances, the fact that the amount awarded by the Tribunal was based on a quote for the entire job and not just the areas showing damage did not render the Decision not fair and reasonable. In particular, the conclusion that partial rectification was not feasible was open to the Tribunal.
7. For the above reasons, the Appeal Panel is not satisfied that the Decision was not fair and equitable.

Was the Decision against the weight of evidence?

1. For a decision of the Tribunal to be against the weight of evidence the evidence in its totality must preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: see Collins at [77].
2. Mr Shielsar's Notice of Appeal sets out two bases on which he contends that the Decision was against the weight of evidence.
3. The first basis is that the Tribunal should have given more weight to the letter from Mr Perry tendered by Mr Shielsar. Mr Shielsar contends that the letter supports his position and does not state that the damage was done by him.
4. The Decision makes clear that the Tribunal had regard to this letter. At paragraphs [20] and [25] of the Decision, the Tribunal described its contents and observed that it was the only evidence adduced by Mr Shielsar (and that there was no witness statement from Mr Shielsar himself). The Tribunal noted that Mr Perry had suggested that there may have been other causes of the damage but observed that his evidence was speculative, and its reliability was questionable as he did not deal with all of the evidence of the damage that had occurred.
5. The second basis is that the Tribunal should not have relied upon evidence from Mr Gawthorne as to the cause of the damage when: (1) the evidence established that an architrave had been damaged by Mr Aghabekian; (2) Mr Gawthorne exaggerated the extent of the damage "however the member was not aware of this".
6. The first of these matters fails as there was no evidence before the Tribunal that Mr Aghabekian was the cause of that damage and in any event it is but one aspect of the paint work.
7. The second cannot be accepted in circumstances where there was no contrary evidence adduced as to the extent of the damage (save for Mr Perry's evidence, which the Tribunal found to be speculative and unreliable), where there was no cross examination and where no submission was made to the Tribunal to the effect that Mr Gawthorne had exaggerated the extent of the damage. As Mr Shielsar acknowledges, the member was not aware of this contention.
8. For the above reasons the Appeal Panel is not satisfied that Mr Shielsar may have suffered a substantial miscarriage of justice because the Decision was against the weight of evidence.

Has significant new evidence arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)?

1. Clause 12(1)(c) of Sch 4 to the NCAT Act provides that leave to appeal may be given if the Appeal Panel is satisfied that an appellant may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Whether evidence was "not reasonably available" at the time of the hearing is determined by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111at [23].
2. Mr Shielsar sought to introduce two types of new evidence.
3. The first was to "produce testing on the damaged areas, which I could not physically access at the time of the Tribunal at the respondent's home from a professional/qualified paint expert, who is Independent to Australian Standards".
4. As noted at [17] above, on 10 September 2021, Deputy President Westgarth refused an application by Mr Shielsar concerning inspection of the damaged areas of the paint work on the basis that new evidence is not allowed in an appeal unless it was not reasonably available at the time of the first hearing. This suggests that the Deputy President was not persuaded that the evidence was not readily available at that time.
5. The Appeal Panel is not persuaded that it should re-open this question. This is particularly so when as noted at [47] above there is no evidence that Mr Shielsar was denied an opportunity to obtain such evidence, or that he claimed before the Tribunal that he was disadvantaged by such a lack of opportunity, and where Mr Perry's letter states that he attended Mr Aghabekian's house in the company of Mr Shielsar for the purpose of inspecting the paint work.
6. The other type of new evidence was a series of references as to the quality of Mr Shielsar's work done for others. However, there is no explanation as to why such evidence was not reasonably available at the time of the hearing and in any event it is not significant evidence, particularly in circumstances where it is not apparent that the referees have been made aware of the allegations in this case.
7. The Appeal Panel is not satisfied that significant new evidence has arisen that was not reasonably available at the time of the hearing.

Conclusion

1. For the reasons set out above, the Tribunal is not satisfied that: 1. the Tribunal made an error of law; or 2. Mr Shielsar may have suffered a substantial miscarriage of justice because of one or more of the matters set out in cl 12 (1) (a) to (c) of Sch 4 to the NCAT Act. It follows that the discretion to grant leave to appeal has not been enlivened and leave to appeal must be refused.

Orders

1. The Orders of the Appeal Panel are: 1. The name of the respondent in proceeding HB 21/07423 is amended to "Reza Shielsar"; 2. The order made by the Tribunal in proceeding HB 21/07423 on 30 June 2021 is amended by the removal of the words "Art & Brush Pty Ltd" and by the insertion in substitution therefor the words "Reza Shielsar"; 3. The name of the appellant in proceeding AP 2021/00215117 is amended to "Reza Shielsar"; 4. The time in which to appeal is extended to 27 July 2021; 5. Leave to appeal is refused; and 6. The appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2021